Hill v. Garner

• Decision Date: 24 March 1977
• Citation: 277 Or. 641,561 P.2d 1016
• Parties: Sharon HILL, Appellant, v. David Max GARNER, Respondent.
• Court: Oregon Supreme Court

Page 1016

561 P.2d 1016

277 Or. 641

Sharon HILL, Appellant, v. David Max GARNER, Respondent.

Supreme Court of Oregon, In Banc.

Argued and Submitted Feb. 9, 1977.

Decided March 24, 1977.

Max S. Taggart, II, and Sanders, Lively & Wiswall, Springfield, filed briefs for appellant.

Duane Vergeer, Portland, argued the cause for respondent. With him on the brief were Thomas Sauberli, and Vergeer Samuels, Roehr & Sweek, Portland.

Before DENECKE, C.J., and HOLMAN, TONGUE, BRYSON, LENT, LINDE and MENGLER, JJ.

BRYSON, Justice.

Plaintiff, a guest passenger, brought this action against the driver of the motor vehicle in which she was riding to recover damages for personal injuries sustained by her in a two-car accident. At the close of evidence, defendant moved for a directed verdict on the ground that no evidence had been presented to prove defendant's guilt of gross negligence. Upon plaintiff's request, the case was submitted to the jury. ORS 18.140(2). The jury returned a verdict in favor of plaintiff. Thereafter defendant moved for judgment in favor of defendant notwithstanding the verdict, arguing that 'the evidence was insufficient to submit the question of gross negligence to the jury and that the verdict is contrary to the evidence and not in accordance with the instructions.' The trial court allowed the motion and entered judgment in defendant's favor, and plaintiff appeals.

Plaintiff states:

'The sole question on appeal is whether there was sufficient evidence to enable the jury to find the Defendant grossly negligent.'

In her brief, plaintiff also attacks the constitutionality of the Oregon guest passenger statute, ORS 30.115. This court has recently held the statute constitutional. Duerst v. Limbocker, 269 Or. 252, 525 P.2d 99 (1974); Salmon v. Miller, 269 Or. 267, 525 P.2d 104 (1974); and Jensen v. Spencer, 269 Or. 411, 525 P.2d 153 (1974). Therefore, we do not consider plaintiff's assertions of unconstitutionality.

A judgment n.o.v. ought not to be granted if there is any evidence to support the verdict. Williamson v. McKenna, 223 Or. 366, 392, 354 P.2d 56 (1960); Austin v. Sisters of Charity, 256 Or. 179, 183, 470 P.2d 939 (1970). In determining whether there was evidence to support the jury's finding that defendant's conduct constituted gross negligence, we review the evidence in the light most favorable to the plaintiff.

The accident occurred at approximately 7:45 a.m. on the highway connecting the cities of Parkdale and Hood River. At the time of the accident defendant and plaintiff were on their way to high school. The evidence reveals that defendant's 1962 Impala lost traction on 'black ice' while negotiating a gentle right-hand turn, went out of control and struck an auto traveling in the opposite direction. Although the evidence concerning the condition of defendant's front tires and that describing the weather conditions at the time of the accident is disputed, the standard of review applicable in cases of this type compels us to find that defendant's tires were substantially bald; that the morning of the accident was cold and misty; and that the pavement was damp but, except for the site of the accident, not icy. Defendant also stated that he encountered some sleet as he was driving towards Hood River. Road conditions, however, were not so severe as to cause the highway crews to sand the highway.

Plaintiff has virtually no remembrance of the accident, having suffered nearly total amnesia with regard to the incident. Plaintiff did testify, however, that during those portions of the trip she did remember, the defendant exercised care in the operation of his vehicle:

'Q At any time during that morning did David (defendant) drive anything but carefully?

'A Yes, he did.

'Q You say he did drive carefully?

'A Yes he did.

'Q All right. Do you recall how fast you drove at any time during that short period?

'A He didn't drive fast.'

Defendant testified that he was traveling between 35 and 40 miles per hour at the time of the accident. This testimony was collaborated by Mike Snodgrass, as friend of defendant. Defendant and Snodgrass had made arrangements the day before the accident that defendant would meet Snodgrass in Parkdale, follow him to the Dodge garage in Hood River, and then give him a ride to the high school. Snodgrass testified that he had met defendant according to plan; that they had left Parkdale simultaneously, with Snodgrass in the lead; that he had maintained a speed of between 35 and 40 miles per hour; and that defendant had never passed him.

The evidence is uncontested that the 'black ice' was not visible to drivers entering the curve, and that the drivers of the two vehicles which immediately preceded defendant's car into the curve also lost control of their vehicles. The first of the vehicles was a two-year-old 911T Porsche. The Porsche was equipped with studded radial tires and was traveling at approximately 40 miles per hour when it hit the ice, went out of control and crossed into the wrong lane of traffic. The second vehicle was the Dodge driven by Mike Snodgrass. This vehicle was equipped with treaded street tires in front and snow tires in the rear. It also was traveling at between 35 and 40 miles per hour at the time it lost traction and went out of control. Both vehicles had already passed through the curve and were out of sight when defendant's vehicle entered the curve.

Plaintiff offered the testimony of an accident reconstruction expert that the friction coefficient (traction) of defendant's vehicle was...